ContractsProf Blog

Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Monday, February 23, 2015

Session on Contract as Empowerment at K CON X

KarA recent contract law piece, “Contract as Empowerment” was just listed as “Download of the Week” on Larry Solum’s Legal Theory Blog. As many readers of this blog will know, this piece reflects University of Illinois Law Professor Robin Bradley Kar’s latest work on contract theory. The piece combines core arguments from two pieces that we recently highlighted on this bloom, but presents them in a single law review article format. The piece thus distills the ideas and presents them in polished form.
 
For anyone still contemplating attending K-CON at UNLV, an additional Roundtable on Contract as Empowerment has also been added.  This Roundtable will take place on Saturday, February 28th, at 9:00 am at UNLV. Professor Kar will present the theory. Gregory Klass (Georgetown Law), Russell Korobkiin (UCLA Law) and Jeff Lipshaw (Suffolk Law) will offer responses, before leaving time for audience Q&A. 
 
Here is the abstract and link to the article:
 
 

            This Article offers a novel interpretation of contract law, which I call “Contract as Empowerment”. On this view, contract law is neither a mere mechanism to promote efficiency nor a mere reflection of any familiar moral norm—such as norms of promise keeping, property, or corrective justice. Contract law is instead a mechanism of empowerment: it empowers people to use legally enforceable promises as tools to influence other people’s actions and thereby meet a broad range of human needs and interests. It also empowers people in a special way, which reflects a moral ideal of equal respect for persons. This fact explains why contract law can produce genuine legal obligations and is not just a system of coercion.

            The purpose of this Article is to introduce contract as empowerment and argue that it reflects the best general interpretation of contract. Contract as empowerment is an “interpretive” theory in the sense that it is simultaneously descriptive, explaining what contract law is, and normative, explaining what contract law should be.

            To support contract as empowerment’s interpretive credentials, I identify a core set of doctrines and puzzles that are particularly well suited to testing competing interpretations of contract. I argue that contract as empowerment is uniquely capable of harmonizing this entire constellation of doctrines while explaining the legally obligating force of contracts. Along the way, contract as empowerment offers (1) a more penetrating account of contractual remedies than exists in the current literature; (2) a more compelling account of the consideration requirement and its standard exceptions; and (3) a concrete framework to determine the appropriate role of certain doctrines—like unconscionability—that appear to limit freedom of contract. Contract as empowerment also explains the main differences between claims for breach of contract, promissory estoppel, restitution and quasi-contract. It explains key doctrines and answers key puzzles at each basic stage of contract analysis: formation, interpretation and construction, performance and breach, the standard defenses and the standard remedies.

            The whole of this explanation is, moreover, greater than the sum of its parts. Because of its harmonizing power, contract as empowerment demonstrates how a broad range of seemingly incompatible surface values in modern contract law can work together—each serving its own distinctive but partial role—to serve a more fundamental principle distinctive to contract. These surface values include the values of fidelity, autonomy, liberty, efficiency, fairness, trust, reliance and assurance. Although many people think that contract law must involve trade offs between these values, contract as empowerment suggests that tensions between them are not always real. So long as the complex system of rules that governs contracts is fashioned in the right way, these doctrines can work together to serve a deeper and normatively satisfying principle distinctive to contract. This framework can therefore be used to guide legal reform and identify places where market regulation is warranted by the principles of contract in many different contexts of exchange—from those involving consumer goods to labor, finance, credit, landlord-tenant, home mortgages and many others.

            There is a further implication of contract as empowerment. Contract as empowerment absorbs many economic insights but gives them a fundamentally different interpretation. It suggests that contracting and modern market activities are not simply spheres where self-interest runs wild. They are instead spheres of moral interaction, which can engage people’s natural sense of obligation and generate genuine legal obligations—at least so long as contract law is simultaneously personally empowering and reflective of a moral ideal of equal respect for persons. An important moral fabric has, in other words, been running through contract law and many forms of modern economic activity for some time now. This fabric has been obscured by classical economic interpretations but cannot be ignored in any true social science of the phenomena. Understanding this moral fabric can help people lead better and more integrated lives, as both moral and economic agents. We must, however, learn to strengthen this fabric and protect it from growing tear.

February 23, 2015 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, February 19, 2015

In Memoriam: Marvin A. Chirelstein

Chirelstein bookMarvin A. Chirelstein, Professor Emeritus at Columbia Law School, died on February 16th.  He was 86.

I never met Professor Chirelstein, but his book (at left) was a revelation to me.  I read it while taking first year contracts.  My first year contracts course was rigorous and stimulating, but Chirelstein's book gave me my first inkling that contracts law and lore could be entertaining and fun.  I brought that edition with me to work, where it sat in my office until it went down with the World Trade Center.  When I became a contracts prof, I started getting the new editions, and I was always happy to see how the book was updated.  It still sits on my shelf as a trusted reference book that I recommend to students, hoping to kindle in them the same enthusiasm for the subject that it kindled in me.

A notice is available on the Columbia Law School website and in the New York Times.

February 19, 2015 in Contract Profs | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 18, 2015

New in Print

Getting Close to K Con X!

For those of you who are still trying to decide whether or not to attend, it looks like a great conference, featuring two of our bloggers, Nancy Kim and Myanna Dellinger.

Las vegas at night

10th International Conference on Contracts

William S. Boyd School of Law, UNLV

February 27 & 28, 2015 

Preliminary Program

   UNLV logo

Fri. 2/27

8:15-8:45         Registration and Continental Breakfast (Moot Court Lobby)

8:45-9:00         Welcome and Announcements (Moot Court Auditorium)

9:00-10:45      Whose Contract Law Is It Anyway? (Moot Court Auditorium)

Chair: Dov Waisman

Danielle Hart, How Does Bargaining Power Affect Contract Litigation Outcomes?

Larry DiMatteo, How Private is Private Contract Law?

H.G. Prince, How Does the California Supreme Court’s Contracts Jurisprudence Relate to Its Ideological Composition?

Hila Keren, Whose Freedom of Contract?

Consent (or Lack Thereof) (BSL 102)

Chair: TBA

Shawn Bayern, Offer and Acceptance in Modern Contract Law: A Needless Concept

Chunlin Leonhard, Consent in Contract: A Dangerous Fiction

Kenneth Ching, What We Consent to When We Consent to Form Contracts: Market Price

Eric Zaks, Bonding and Contract Drafting: Paying a Premium for Foregoing Genuine Consent

10:45-11:00    Break

11:00-12:30    Contract Terms I (Moot Court Auditorium)

Chair: TBA

Royce Barondes, Frictions and the Persistence of Inferior Contract Terms

Mark Gergen, Privity's Shadow: Exculpatory Terms in Extended Forms of Private Ordering

Joshua Silverstein, Using the West Digest System as a Data Collection and Coding Device for Empirical Legal Scholarship: Demonstrating the Method Via a Study of Contract Interpretation

Comparative and International I (BSL 102)

Chair: TBA

Mateja Djurovic, Europeanisation of Contract Law Through the Judicial Activity of the European Court of Justice

Glennys Spence, A Pound of Flesh: A Comparative Analysis of the Group of Companies Doctrine and the Alter Ego Theory in International Commercial Arbitration

Jane Winn, Contracting Out of the Nation State: The Role of Global Private Regulators

12:30-1:45      Lunch (Barrick Museum Garden)

1:45-3:30         Roundtable: Perspectives on the Restatement (Third) of the Law of Consumer Contracts (Moot Court Auditorium)

Chair: Omri Ben-Shahar (U. of Chicago)

Robin Kar (U. of Illinois)

Nancy Kim (California Western)

Gregory Klass (Georgetown)

David McGowan (U. of San Diego)

3:30-3:45         Break (Moot Court Lobby)

3:45-5:30         Consumer Protection (Moot Court Auditorium)

Chair: TBA

Susanne Augenhofer, Self-Regulation and the Interface of Consumer Protection and Corporate Governance

David Friedman, Addressing Fictitious Pricing: Discounting of Retail Goods and Deceptive Prior-Reference Pricing

Timothy Hall, Contractual Limitation of Personal Fitness and Health Data Tracking: An Empirical Analysis

Jim Hawkins, Are Bigger Companies Better for Low-Income Borrowers?: Evidence from Payday and Title Loan Advertisements 

Performance & Enforcement (BSL 102)

Chair: TBA

Pamela Edwards, “The Best Interests of the League”: Contractual Limits of Sports Leagues Commissioners' Powers to Discipline Team Owners

Orit Gan, The Justice Element of Promissory Estoppel

Victor Goldberg, Buffalo’s Field of Dreams: Kenford Co. v. Erie County

Jennifer Martin, Avoiding Unpleasant Surprises in Resales Under 2-706 

6:00-9:00         Reception & Dinner (Barrick Museum Exhibition Hall)

 

Sat. 2/28

8:30-9:00         Breakfast (Moot Court Lobby)

9:00-10:30      Storytelling and Contracts (Moot Court Auditorium)

Chair: Keith Rowley

Lenora Ledwon, Bonds, Promises, and Contracts in the Narco-Western: Freedom of (and From) Contract in Breaking Bad

Deborah Post, Story Telling and Normative Analysis

Debora Threedy, Cooper on Contracts: Popular Culture and the Paradox of Relational Contracts

Comparative and International II (BSL 102)

Chair: TBA

Myanna Dellinger, Rethinking Force Majeure in U.S. and International Contracts Law

Larry DiMatteo, A Case Study in Comparative Contract Law: Late Acceptance, Right to Cure, and Anticipatory Repudiation in Common, Civil, and Chinese Contract Laws

Irina Sakharova, Finance Lease Contracts: International and Comparative Perspectives

10:30-10:45    Break 

10:45-12:15    Digital Giants Gone Wild! (Moot Court Auditorium)

Chair: TBA

Michael Rustad & Thomas Koenig, Wolves of the World Wide Web: Reforming Social Media Provider’s Contracting Practices

Nancy Kim, Internet Giants as Quasi-Governmental Actors and the Limits of Contractual Consent

Joasia Luzak, Wanted: A Bigger Stick – On Unfair Terms in Consumer Contracts with Online Service Providers

Sacred Cows (BSL 102)

Chair: TBA

Mark Burge, Thinking Outside the Four Corners of Contract Doctrine in the Legal Education Crisis

Victor Goldberg, Rethinking Jacob and Youngs v. Kent

Jeff Lipshaw, Does Contract Theory Matter?

12:15-1:45      Lunch (RAJ 4th Floor Faculty Lounge)

Keynote: Stewart Macaulay

Comments: Chuck Knapp

                       Peter Linzer

 

1:45-3:30         Roundtable: Perspectives on More Than You Wanted to Know: The Failure of Mandated Disclosure (Moot Court Auditorium)

Chair: Omri Ben-Shahar (U. of Chicago)

Susanne Augenhofer (Humboldt U.-Berlin)

Jeffrey Stempel (UNLV)

Stacey Tovino (UNLV)

TBA

3:30-3:45         Break (Moot Court Lobby)

3:45-5:15         Contract and Families (Moot Court Auditorium)

Chair: TBA

Erez Aloni, Mistaking Neoclassicism for Pluralism in Family Law

Christie Matthews, Contract Law, Race, and Intrafamilial Transactions

Contract Terms II (BSL 102)

Chair: TBA

Sid DeLong, Construction Contracts (N.B.: It’s not what you think)

Peter Gerhart, Good Faith Contract Performance and the Reasonable Person

Allen Kamp, UCC Interpretation versus Plain Meaning Interpretation: A Question of Purpose

5:15-5:30         Conference Wrap-Up (Moot Court Auditorium)

February 18, 2015 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Chapman University Faces Litigation over $12 Million Gift

According to this story in the LA Times, James and Catherine Emmi are seeking the return of $3 million that they have already donated as part of a $12 million charitable pledge to Chapman University.  They are also asking the University to renounce any claim to the remaining $9 million.  If the account is accurate, the Emmis seem to be claiming that:

  • they never made the $12 million pledge;
  • the University took advantage of James Emmi's "confusion in his old age" and preyed on him for the donation (are they alleging mental incapacity or undue influence?);
  • the University harassed the couple by inviting them to events, sending them cards and "referring to them as family";
  • the University breached its agreement with the Emmis by 
    • not publicly recognizing them in a 2013 ceremony, and
    • not making sufficient progress on "Emmi Hall."

It is not clear how the Emmis account for their having already made a $3 million payment towards the $12 million pledge that they claim they never made.  

[H/T Miriam Cherry]

February 18, 2015 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 17, 2015

Weekly Top Tens from the Social Science Research Network

SSRNSSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 366 Choice of Law in the American Courts in 2014: Twenty-Eighth Annual Survey 
Symeon C. Symeonides 
Willamette University - College of Law 
2 180 The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act 
Kenneth C. Kettering 
Visiting Professor at Large 
3 147 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
4 102 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 
5 94 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
6 86 Second-Liens and the Leverage Option 
Adam J. Levitin and Susan M. Wachter 
Georgetown University Law Center and University of Pennsylvania - Wharton School, Department of Real Estate 
7 85 Fiduciary Relationships: Ensuring the Loyal Exercise of Judgement on Behalf of Another 
Lionel Smith 
McGill University - Faculty of Law - Paul-André Crépeau Centre for Private and Comparative Law 
8 69 Virtual Currencies & Federal Law 
Julie Andersen Hill 
University of Alabama - School of Law 
9 67 Liberalism's Fine Print: Boilerplate's Allusion to Human Nature 
Kenneth K. Ching 
Regent University - School of Law 
10 63 Contracts Symposium Issue: Featured Speaker: The Right to Contract as a Civil Right 
Robin L. West 
Georgetown University Law Center 

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 147 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
2 102 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law
3 94 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
4 90 Prizes! Innovating, Risk Shifting, and Avoiding Contracts and Grants 
Steven L. Schooner and Nathaniel E. Castellano 
George Washington University - Law School and George Washington University - Law School 
5 67 Liberalism's Fine Print: Boilerplate's Allusion to Human Nature 
Kenneth K. Ching 
Regent University - School of Law 
6 63 Contracts Symposium Issue: Featured Speaker: The Right to Contract as a Civil Right 
Robin L. West 
Georgetown University Law Center 
7 58 Law in East Florida 1783-1821 
M. C. Mirow 
Florida International University (FIU) - College of Law
8 54 Third Party Beneficiaries and Contractual Networks 
Alan Schwartz and Robert E. Scott 
Yale Law School and Columbia University - Law School 
9 42 Dynamic Common Law and Technological Change: The Classification of Bitcoin 
Shawn J. Bayern 
Florida State University - College of Law 
10 41 Passive Consumers vs. The New Online Disclosure Rules of the Consumer Rights Directive 
Joasia Luzak 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 

February 17, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Submitting a Law Review Article about Wrap Contracts through a Wrap Contract

I've been away from the submission process for a few years.  In the meantime, Scholastica has entered the picture, which from an author's view is simply an expensive headache, and more journals are encouraging authors to submit directly through either e-mail or their own online submissions process. 

Having been a historian before becoming a law professor, I am still grateful for the advantages of student-edited law journals and authors' ability to submit to scores of journals simultaneously.  I still believe that this process is better for authors and not significantly less arbitrary that double-blind peer review.  Lots of scholarship gets published that does not end up getting used or cited under both systems, but the peer review process banishes lots of possibly meritorious scholarship to the dung-heap of history based on the opinions of two people whose reasoning might be insufficient to justify such a heavy penalty.

That said, I do find a new feature of online submission processes disquieting.  At least one journal that encourages authors to submit through their online submission form features a Submission Agreement that includes a link to a separate page containing the journal's "attribution and usage policies."  The latter are incorporated by reference, and thus one must agree to them in advance before submitting the article.  There is nothing particularly onerous in the Submission Agreement or the usage policies, but the problem is that authors submit to dozens or scores of journals.  The journals cannot really expect authors (or their administrative assistants who submit on their behalves) to read through boilerplate terms.  So there we have it -- forms that purport to bind law professors to terms to which they have not meaningfully consented.  This is especially ironic if, like me, you have been writing about the dangers of form contracts and the degraded version of "consent" in this context. 

The practice is especially irksome as the submission process does not otherwise involve a contract.  When I submit my article to multiple journals for publication, I am submitting an invitation for offers.  I have no obligation to the journals, and they have no obligation to me.  They don't even have to read my piece before rejecting it, nor do they have to respond in any way to me.  And if they do offer to accept my piece (which, note, is typically described as an "offer to publish" not as an "acceptance"), I can reject that offer and go merrily on my way.  

The introduction of form contracts at the submission state --  a point at which the parties have no legal relationship -- is simply unnecessary.

February 17, 2015 in Commentary, True Contracts | Permalink | Comments (0) | TrackBack (0)

Monday, February 16, 2015

Weekly News Roundup

372px-Lady_Gaga_during_the_ArtRave_Tour
Lady Gaga by nikotransmission

An interesting test for contracts rights of first refusal.  As reported here in Indianapolis Business Journal (IBJ.com), an Indianapolis-based media company, Emmis Communications (Emmis) is suing a Los Angeles radio personality Kurt Alexander (known as "Big Boy").  The latter received a generous offer from iHeartMedia, which Emmis claims to have matched.  Big Boy is jumping ships nonetheless, so Emmis is suing for breach of contract.

According to this account in the Bangor Daily, a Maine author, Tess Garritsen will get to refile her claims against Warner Bros. for breach of contract in connection with the studio's film, Gravity.  A District Court in California dismissed her complaint but has allowed her twenty days to amend and refile.  The complaint is based on a $1 million contract Gerritsen signed in 1999 to sell the book’s feature film rights to a company that was eventually purchased by Warner Bros.  Gerritsen has admitted that the film "is not based on" her book, but she asserts that the book clearly inspired the film.  

According to this story on NJ.com, a Federal District Judge rejected a motion to set aside a $7.3 million jury award in Wendy Starland's suit against record producer Rob Fusari.  The payoff was in consideration of Starland's discovery of Stefani Germanotta, aka Lady Gaga (pictured).

February 16, 2015 in In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Your Smart TV May Be Engaged in Intelligence Work

Back in 2013, we mused about the seeming disconnect between public outrage at NSA data mining and the lack of comparable outrage with respect to private data mining.  Nancy Kim and I have been writing in this area, and a recent report in the ABA Journal provides additional fodder for our scholarship.  

One of the things that makes television's "smart" these days is that they have the ability to respond to voice commands.  If you have this feature on, the television transmits your information to a third party, according to Samsung.  If you turn the voice recognition feature off, your television still gathers the data but it does not transmit it.  

Smart_TV
Photo by LG

Over at Salon, Michael Price gives us reasons why we should be afraid of our smart tvs.  Having reviewed his television's 46-page privacy policy, Price concludes that it has the capability to collect a staggering amount of data.  One could turn off the television's "smart" features, but that can affect your television's ability to do some of the things you bought it for.  Just as we cannot choose which channels the cable providers send us, we can only choose from packages, we apparently cannot choose to have a television with some "smart" features unless we are willing to invite Big Brother into our living rooms.

February 16, 2015 in About this Blog, Commentary, Television, Web/Tech | Permalink | Comments (1) | TrackBack (0)

Thursday, February 12, 2015

Bar Prep Teaching

This year, I am teaching a bar preparation course on contracts, which is being offered for the first time at my Law School.  This is a lot of fun for me -- I like teaching contracts both semesters because it keeps my mind more focused on the subject.  It's also fun to teach the material in a different way -- no cases, as some familiarity with the case law is assumed at this point, so I just give mini refresher lectures and then move on to the homework assignment.

So it's fun, but it's also a lot of work.  I give my students four multiple choice questions each day, and they have to turn in their answers -- explaining why the right answer is wrong and the wrong answers are wrong.  The idea is to both solidify their understanding of the doctrine and alert them to the strategy behind bar exam "distractors" -- that is, wrong answers that are trying to trick students into mistaking them for correct answers.  Most days, they also have to write a short essay, designed to be akin to MEE questions.  

Because I am teaching such a course myself, I read with some interest David Frakt's recent post on The Faculty Lounge on the value of in-house bar prep courses.  But I was taken aback by the comments.  The anonymous or pseudonymous commentators asked the following rhetorical questions:

  • Does bar prep make students better lawyers?
  • What good is passing the bar when there are no jobs for lawyers anyway?
  • Don't law schools have an obligation to refrain from flooding the market with unemployable lawyers?

I think this is a case of massive anger that is massively misdirected.  Students are in law school.  They want to stay in law school and they want to become lawyers.  I have met with many students facing dismissal from my Law School for poor academic performance.  The ones I have spoken to all are willing to do whatever it takes to stay in, and they are furious with us when we dismiss them.  So we put the time and the energy into bar prep courses because it is what our students need.  Some of them need it because they won't do the work without the additional kick in the pants.  Others need it because they have many natural gifts that will make them great lawyers, but excelling at standardized tests is not one of them.  We are trying to get them over that hurdle so that they can have the careers for which they are otherwise qualified.

I certainly understand the anger of the unemployed law students.  I was an unemployed Ph.D. before I went to law school.  I know what professional devastation feels like.  It seems like the "Law School Scam" crowd thinks the solution is to just shut law schools like the one I teach at.  But how would throwing me, my colleagues, and our support staff out of work improve the situation?  It certainly would not improve things for the students we serve, most of whom pass the bar, find work, and do better than they would have done without their degrees.  Law school opened for me a range of career options that would have been completely unthinkable without my J.D.  Why should that opportunity be denied to the current generation of potential law students?

February 12, 2015 in Commentary, Teaching, Weblogs | Permalink | Comments (0) | TrackBack (0)

John E. Murray, 1932-2015

We just received the sad news of Chancellor John E. Murray's death, at age 82.  An obituary can be found here in the Pittsburgh Post-Gazette.  I met Chancellor Murray only once, at the International Conference on Contracts two years ago at which we honored him.  That being the case, I am not well positioned to post a remembrance, and I hope our readers will avail themselves of the comments space to share their recollections.

But I will say this.  Less than two weeks ago, Chancellor Murray chimed in on a thread on the Contracts Prof listserv.  He shared a sober, scholarly rumination on the parol evidence rule and the CISG.  Two weeks earlier, he posted a succinct and complete answer to a question that I had posed on the listserv.  According to the Post-Gazette report, on the day he died, Chancellor Murray thought to get word to his law school Dean that he would need somebody to cover his classes the next day.  From what little I know of him, I can say that he was absolutely dedicated to his students and his colleagues, and he died with his contracts law boots on.

February 12, 2015 in Contract Profs | Permalink | Comments (1) | TrackBack (0)

Wednesday, February 11, 2015

Construction Contracts that Kill

Property development is often considered a way for local communities to earn more taxes and evolve with times in general.  But when construction and other development is approved in geologically risk areas such as flood zones and things go awfully wrong, is this a mere property and contracts issue, or may criminal liability lie?

In France, the answer is the latter.  The former mayor of the small French seaside town La Faute-sur-Mer  was just sentenced to jail for four years for deliberately hiding flood risks so that he and the town could benefit from the “cash cow” of property development, a French court has held.  His deputy mayor received a two-year sentence in the same plot.

In 2010, the cyclone Xynthia hit western Europe and knocked down seawalls in the French town, leading to severe floods and 29 deaths. 

Wait… a cyclone in France?  Yes.  Climate change is real and it’s here.  Unless we do something about it (which apparently we don’t), things will only get worse.  As on-the-ground steps that could prevent extreme results such as the above are often simply ignored or postponed while more and more research is done and money saved at various government scales, lawsuits will necessarily follow.  The legal disciplines, including contracts law, will have to conform to the new realities of a rapidly changing climate.  For starters, we need to seriously question the wisdom and continued desirability of constructing more and more homes in coastal and other flood prone areas.  Ignoring known risks is, well, criminal.

February 11, 2015 in Commentary, Current Affairs, Government Contracting, Labor Contracts, Science | Permalink | Comments (0) | TrackBack (0)

Mark Zuckerberg in a Modern Mitchill v. Lath?

Mcherry3Friend of the blog, Miriam Cherry (pictured) is quoted in this story about a spat between Facebook CEO Mark Zuckerberg and a former neighbor.  The story seems much creepier than the classic icehouse case, Mitchill v. Lath.   Here, plaintiff Mircea Voskerician claims he offered to sell his house to Zuckerberg after pointing out to Zuckerberg that Voskerician was planning to build a large house that overlooked Zuckerberg's master bedroom.  Voskerician alleges that he sold the property to Zuckerberg at a significant discount in return for an oral promise that Zuckerberg would introduce Voskerician, a real estate developer, to Zuckerberg's Silicon Valley contacts.  

Voskerician alleges that Zuckerberg has not honored his end of the deal.  Zuckerberg seems to be denying there was any such deal.  So the interesting contracts question is whether the parol evidence rule will permit introduction of Voskerician's evidence of the oral promise.  Noting that California is quite permissive in the admission of parol evidence, Professor Cherry suggests that Voskerician will be permitted to introduce the evidence.  

If the newspaper account cited above is accurate, it is hard to imagine how Zuckerberg's introduction would have helped Mr. Voskerician.  It might run something like this: "Hey there, Captain of Virtual Industry!  Let me introduce you to this man, here, who was almost my backyard neighbor.  He threatened to do a Rear Window number on me unless I bought him out.  Would you like to do some business with him?" 

February 11, 2015 in Celebrity Contracts, Famous Cases, In the News | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 10, 2015

Weekly Top Tens from the Social Science Research Network

SSRNSSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 359 Choice of Law in the American Courts in 2014: Twenty-Eighth Annual Survey 
Symeon C. Symeonides 
Willamette University - College of Law 
2 169 The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act 
Kenneth C. Kettering 
Visiting Professor at Large 
3 139 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
4 124 Contract as Automaton: The Computational Representation of Financial Agreements 
Mark D. Flood and Oliver R. Goodenough 
Office of Financial Research and Vermont Law School 
5 123 Good Faith and Fair Dealing as an Underenforced Legal Norm 
Paul MacMahon 
London School of Economics - Law Department 
6 93 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 
7 79 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
8 77 Genealogies of Lex Mercatoria 
Nikitas Hatzimihail 
University of Cyprus, Department of Law 
9 75 Foreign Investments and the Market for Law 
Susan D. Franck and Erin A. O'Hara O'Connor 
Washington and Lee University - School of Law and Vanderbilt University - Law School 
10 67 Second-Liens and the Leverage Option 
Adam J. Levitin and Susan M. Wachter 
Georgetown University Law Center and University of Pennsylvania - Wharton School, Department of Real Estate 

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 139 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
2 124 Contract as Automaton: The Computational Representation of Financial Agreements 
Mark D. Flood and Oliver R. Goodenough 
Office of Financial Research and Vermont Law School 
3 93 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 
4 89 Prizes! Innovating, Risk Shifting, and Avoiding Contracts and Grants 
Steven L. Schooner and Nathaniel E. Castellano 
George Washington University - Law School and George Washington University - Law School 
5 79 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
6 75 Foreign Investments and the Market for Law 
Susan D. Franck and Erin A. O'Hara O'Connor 
Washington and Lee University - School of Law and Vanderbilt University - Law School 
7 60 Liberalism's Fine Print: Boilerplate's Allusion to Human Nature 
Kenneth K. Ching 
Regent University - School of Law 
8 56 Law in East Florida 1783-1821 
M. C. Mirow 
Florida International University (FIU) - College of Law 
9 53 Contracts Symposium Issue: Featured Speaker: The Right to Contract as a Civil Right 
Robin L. West 
Georgetown University Law Center 
10 42 Third Party Beneficiaries and Contractual Networks 
Alan Schwartz and Robert E. Scott 
Yale Law School and Columbia University - Law School 

 

February 10, 2015 in Recent Scholarship | Permalink | TrackBack (0)

District Court Had Inadequate Cause for Intervention in an Arbirtration

9th CirIn Sussex v. U.S. Dist. Ct. for the Dt. of Nevada, Las Vegas, Petitioners filed a writ of mandamus seeking to overturn the District Court's disqualification of an arbitrator for "evident partiality."  The underlying arbitration involved several civil actions against Turnberry/MGM Grand Towers, LLC, the developer and seller of a condominium project.  Turnberry sought removal of the arbitrator, who had become involved in business ventures, which he characterized as "completely dormant," through which he sought to create a fund as an investment vehicle that would provide capital for litigation. The District Court granted Turnberry's motion to disqualify the arbitrator.

On a writ of mandamus, the Ninth Circuit applies the "clear error" standard.  The Ninth Circuit articulated its test for when a District Court may intervene in an arbitration in Aerojet-General Corp. v. Am. Arbitration Ass’n, 478 F.2d 248 (9th Cir. 1973).  That test provides that a court should intervene only in "extreme cases."  The Ninth Circuit characterized this standard as very close to a blanket rule against court intervention in an ongoing arbitration.  

Applying this standard, the Ninth Circuit found that the District Court had clearly erred in disqualifying the arbitrator.  The Court stressed that this case, in which it was not established that the arbitrator's modest business venture would prejudice him against either party, was "emphatically not" the sort of extreme case that would warrant court intervention.

The Petition was granted.

February 10, 2015 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Monday, February 9, 2015

Weekly News Roundup

Sly Stone
Sly Stone by Chris Hakkens

According to Randall Roberts in the L.A. Times, a Los Angeles Superior Court jury ruled for the Sylvester Stewart (aka funk legend Sly Stone, at left) in his action against his ex-manager Gerald Goldstein, attorney Glenn Stone and Even St. Productions Ltd.  It's the usual story.  Sly Stone suffered from drug addiction and ran into hard times when defendants proposed a commercial association in 1989.  Stone successfully alleged unjust enrichment and breach of contract, claiming that he never saw the money that the enterprise earned through his music.  A jury awarded Stone $5 million.  Even St. Productions filed for bankruptcy in 2013, and the other defendants say that they plan to appeal.  

According to Fox Connecticut, a fraternity member who was suspended from Quinnipiac University in a hazing incident is suing the university and four of its officers for breach of contract.  He alleges that his tuition payment entailed a contractual commitment and that the university did not live up to its end of the bargain because he was not fairly treated.  He has other claims against the university sounding in Connecticut's Unfair Trade Practices Statute and in the implied duty of good faith and fair dealing.

 And . . . at long last, the Steven Salaita saga has made its way into a complaint.  We blogged about this story before here and here and here.  His 39-page complaint alleges statutory violations under 42 USC §§ 1983 and 1985, as well as promissory estoppel, breach of contract, tortious interference, and spoilation of evidence.

February 9, 2015 in Celebrity Contracts, Current Affairs, In the News | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 3, 2015

Weekly Top Tens from the Social Science Research Network

SSRNSSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 351 Choice of Law in the American Courts in 2014: Twenty-Eighth Annual Survey 
Symeon C. Symeonides 
Willamette University - College of Law 
2 168 Disappearing Claims and the Erosion of Public Law 
Maria Glover 
Georgetown University Law Center 
3 163 Are Zero Hours Contracts Lawful? 
Ewan McGaughey 
King's College London – The Dickson Poon School of Law 
4 162 The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act 
Kenneth C. Kettering 
Visiting Professor at Large 
5 136 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
6 121 Good Faith and Fair Dealing as an Underenforced Legal Norm 
Paul MacMahon 
London School of Economics - Law Department 
7 102 Contract as Automaton: The Computational Representation of Financial Agreements 
Mark D. Flood and Oliver R. Goodenough 
Office of Financial Research and Vermont Law School 
8 78 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 
9 75 Genealogies of Lex Mercatoria 
Nikitas Hatzimihail 
University of Cyprus, Department of Law 
10 71 Foreign Investments and the Market for Law 
Susan D. Franck and Erin A. O'Hara O'Connor 
Washington and Lee University - School of Law and Vanderbilt University - Law School 

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 168 Disappearing Claims and the Erosion of Public Law 
Maria Glover 
Georgetown University Law Center 
2 163 Are Zero Hours Contracts Lawful? 
Ewan McGaughey 
King's College London – The Dickson Poon School of Law 
3 136 Freedom of Contract (and Economic Analysis) 
Péter Cserne 
University of Hull 
4 102 Contract as Automaton: The Computational Representation of Financial Agreements 
Mark D. Flood and Oliver R. Goodenough 
Office of Financial Research and Vermont Law School 
5 88 Prizes! Innovating, Risk Shifting, and Avoiding Contracts and Grants 
Steven L. Schooner and Nathaniel E. Castellano 
George Washington University - Law School and George Washington University - Law School 
6 78 Llewellyn Has Left the Building: The Growing Irrelevance of the UCC to 21st Century Sales Law 
Jane K. Winn 
University of Washington - School of Law 
7 71 Foreign Investments and the Market for Law 
Susan D. Franck and Erin A. O'Hara O'Connor 
Washington and Lee University - School of Law and Vanderbilt University - Law School 
8 65 Standard Form Contracts: Empirical Studies, Normative Implications, and the Fragmentation of Legal Scholarship 
Eyal Zamir and Yuval Farkash 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
9 55 Law in East Florida 1783-1821 
M. C. Mirow 
Florida International University (FIU) - College of Law 
10 52 Contracts Symposium Issue: Featured Speaker: The Right to Contract as a Civil Right 
Robin L. West 
Georgetown University Law Center 

 

February 3, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Monday, February 2, 2015

Weekly News Roundup

In Benz-Elliott v. Barrett Enterp., LP, the Tennessee Supreme Court clarified the method for determining the statute of limitations when a case raises multiple claims.  In such cases, the court must determine the gravamen of each claim and the nature of damages sought.  In this case, which involved a sale of property, plaintiff alleged breach of contract and sought contractual damages.  The Supreme Court reversed the Court of Appeals, which had dismissed plaintiff's claim based on a three-year statute of limitations relating to property claims.   The six-year statute of limitations for breach of contracts should apply to plaintiff's claims, which were reinstated.

FootballEric Macramalla reports in Forbes that a Jets fan attempted to sue Bill Belichick, the New England Patriots and the NFL on behalf of a class of season ticket holders for having secretly recorded and then destroyed videotapes revealing signals given by New York Jets coaches (which players variously interpreted as "fumble," "drop the pass" and "miss your defensive assignment," inter alia).  The suit was dismissed because the their seasons' tickets only permitted them to watch the game, which they did.  Macramalla predicts similar suits may follow the great under-inflated ball scandal, which, lets face it, is a great distraction from all the other scandals facing the NFL these days.

February 2, 2015 in In the News, Recent Cases, Sports | Permalink | Comments (0) | TrackBack (0)

Ride Sharing Services: It Just Keeps Getting Better!

NYC_Taxi_in_motion
Photo by The Wordsmith


We have had quite a few posts about Uber, Lyft and other ride-sharing services, but they just keep popping up in the news, and the wrinkles are always unexpected and fascinating.  Saturday's New York Times reported that the companies allow drivers to rate their passengers.  If you get a bad rating, you'd better hail a cab or [shudder] take public transportation.  It's not such a strange thing to be rated by a service-provider you pay, the Times point out.  After all, students pay tuition to attend law school, and yet we grade them.  But of course, students know that going in.  Probably most passengers don't expect to be rated.  What a wonderful century we inhabit -- so many opportunities to pass judgment on perfect strangers!  

And what sort of behavior will get you a bad rating?  It may be simple things like asking the driver to turn the heat/air conditioning/radio up or down.  One rider expressed her angst about being thought insensitive or lacking in interpersonal skills if she took a call or did work while riding.  Even Uber's CEO, one of the few riders with access to his own rating, was downgraded from five stars as a passenger to four.  He attributes the lackluster reviews to work stress.  He blames himself.  "I was not as courteous as I should have been.”  He should watch out.  You can be banned from Uber, which siad in a blog post that it only wants to serve "the most respectful riders."

The article suggests that two-way review systems are inevitable, even though they may be inaccurate.  A comparison of a site that allowed two-way reviews with one that allowed only one-way review found that the two-way system leads to far more positive reviews.  

What goes around comes around.  I would not put it past these companies to monitor their drivers' ratings of passengers.  The company may find its own ways to retaliate against drivers who complain about passengers who do nothing more offensive than behaving like busy people who are getting a ride from a stranger as part of a commercial transaction.

February 2, 2015 in Commentary, In the News, Travel | Permalink | Comments (0) | TrackBack (0)

New in Print (including a new book!)

Books 5Giles Cuniberti, The International Market for Contracts: The Most Attractive Contract Laws. 34 Nw. J. Int'l L. & Bus. 455 (2014) 

Robert W. Emerson, Fortune Favors the Franchisor: Survey and Analysis of the Franchisee's Decision whether to Hire Counsel, 51 San Diego L. Rev. 709 (2014)

Shelby D. Green, Contesting Disclaimer-of-Reliance Clauses by Efficiency, Free Will, and Conscience: Staving off Caveat Emptor, 2 Tex. A&M L. Rev 1 (2014)

Cameron S. Hamrick & Michelle E. Litteken, CICA Stay Overrides at the Court of Federal Claims: What Government Contractors Need to Know, 43 Pub. Cont. L.J. 687-713 (2014)

James W. Nelson, GAO-COFC Concurrent Bid Protest Jurisdiction: Are Two Fora Too Many? 43 Pub. Cont. L.J. 587 (2014).

Aaron S. Ralph, Transaction Management: A Systemic Approach to Procurement Reform, 43 Pub. Cont. L.J. 621 (2014)

Steven M. Seigel, War Claims and Private Security Contractors: The Strategic and Regulatory Benefits of Paying Host-Nation Claims against U.S. Contractors, 43 Pub. Cont. L.J. 653 (2014)

Heather K. Way, & Lucy Wood. Contracts for Deed: Charting Risks and New Paths for Advocacy. 23 J. Affordable Housing & Commun. Dev. L. 37 (2014)

  Davies

Accessory Liability

Paul S Davies

Accessory liability in the private law is of great importance. Claimants often bring claims against third parties who participate in wrongs. For example, the ‘direct wrongdoer’ may be insolvent, so a claimant might prefer a remedy against an accessory in order to obtain satisfactory redress. However, the law in this area has not received the attention it deserves. The criminal law recognises that any person who ‘aids, abets, counsels or procures’ any offence can be punished as an accessory, but the private law is more fragmented. One reason for this is a tendency to compartmentalise the law of obligations into discrete subjects, such as contract, trusts, tort and intellectual property. This book suggests that by looking across such boundaries in the private law, the nature and principles of accessory liability can be better understood and doctrinal confusion regarding the elements of liability, defences and remedies resolved.

Please click here to view the table of contents for this book

Paul S Davies is an Associate Professor in Law at the University of Oxford and a Fellow of St Catherine’s College, Oxford.

January 2015     9781849462877     302pp     Hardback     RSP: £55  

Discount Price for Contracts Prof Blog Readers: £44

ORDER ON-LINE
Please click here to order online. When ordering online please type the reference 'CONTRACTSPROFBLOG' in the voucher code field and click ‘apply’ to receive the discount.

If you have any questions please contact Hart Publishing

Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW

Telephone Number: 01865 517 530 Fax Number: 01865 510 710

Website: www.hartpub.co.uk   

February 2, 2015 in Books, Government Contracting, Recent Scholarship | Permalink | TrackBack (0)